UPDATE: February 10,2017- US Appeal Court Dismisses Application to Reinstate Executive Order
“The Constitution of the United States is a law for rulers and people, equally in war and in peace . . . under all circumstances.”
On February 9, 2017, the U.S. 9th Circuit Court of Appeals unanimously dismissed President Trump’s application to reinstate his January 27th Executive Order restricting persons from seven predominately Muslim countries from travelling to the U.S. and freezing refugee admissions into the U.S. This means that, until a court orders otherwise, all officials at U.S. airports and other ports of entry are not allowed to prohibit entry to people from Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen who are travelling on valid visas and are otherwise admissible.
The three judge panel rejected the argument that the Executive Order was “unreviewable” and held that the federal government had failed to establish any irreparable harm if the Executive Order was not reinstated. The Court further found that the federal government had not presented any evidence that the prior system for screening visitors from the seven countries identified in the ban was inadequate.
Comments from the White House after the court’s ruling suggest that President Trump may appeal to the U.S. Supreme Court, which may be done on an urgent basis. This means that a decision either to reinstate the Executive Order or to continue to block it is possible and could be rendered as early as next week.
UPDATE: February 5, 2017 (1pm Eastern/10am Pacific)
(Update courtesy of Open Society Foundations, New York, NY – this does not constitute legal advice but is information passed on by BCCLA)
- On February 3, 2017, the U.S. District Court in the Western District of Washington issued a temporary restraining order which prohibits the federal government from enforcing parts of the Executive Order that banned travel by “non-immigrants” and “immigrants” from Iraq, Syria, Iran, Sudan, Somalia, Yemen, and Libya for 90 days. The judge’s ruling also prohibits the Executive Order’s freeze on refugee admissions, including the indefinite ban on Syrian refugee admissions.
- The U.S. District Court ruling means that right now, until a court rules otherwise, all officials at U.S. airports and other ports of entry are not allowed to prohibit entry to people from Iraq, Syria, Iran, Sudan, Somalia, Yemen, and Libya who are traveling on valid visas and are otherwise admissible. The Department of Homeland Security has confirmed that it will be following the U.S. District Court ruling. The U.S. State Department has also confirmed that unless there are additional issues in the case, all valid visas that were revoked/cancelled by the Executive Order have been made valid again.
- This includes travellers who arrived last weekend and had their visas stamped “cancelled” as a result of the EO. They do not need to reapply for a new visa and absent any other admissibility issues will receive an I-193 waiver (Application for Waiver of Passport and/or Visa) upon arrival to the U.S. However, there are reports that travelers with physical cancellation stamps are encountering difficulties boarding, as some airline and CBP officials are not aware that these travellers are eligible for the I-193 waiver. Airlines have been instructed to contact CBP to receive authorization to permit boarding.
*** Note: Individuals who signed I-257s (or anything revoking their visa) are also eligible for the I-193 waiver, but there are reports that some have been denied boarding. Where possible, Coalition members should assist them in clarifying that they are eligible for the waiver. Where unsuccessful, going to the embassy to get a new visa may be another option, but risks that the stay will be lifted.
- The U.S. federal government has announced that it will ask the court to end this temporary freeze of its Executive Order “at the earliest possible time”, and has filed a notice of appeal. Therefore, if you are attempting to travel to the U.S. on a valid visa, you should attempt to get on a plane as soon as possible. It is possible that during your travel, the law may change and you may be detained at a U.S. port of entry. Please contact [email protected] if you would like to request a referral to any lawyers organizing on the ground at the U.S. airport where you will arrive. Please include your flight information.
- For more information, see https://refugeerights.org/KYR.pdf. If you have been directly affected by the travel ban (or who represent someone who has), please fill out our questionnaire: https://refugeerights.org/BarredTravelerQuestionnaire.pdf.
UPDATE: February 4, 2017
A Federal Judge in Seattle has suspended the effect of the travel ban. See story here: https://www.wsj.com/articles/legal-feud-over-trump-immigration-order-turns-to-visa-revocations-1486153216
We do not have any information at the moment as to how this new order is being applied by US Customs and Border Patrol. The below, however, is what we currently understand, with thanks to volunteer lawyers in Vancouver who have been working on this at Vancouver Airport and other lawyers across the country. This is not legal advice – we just mean to pass along the latest information that we have.
- All persons with valid US visas are allowed to travel to the United States notwithstanding the January 27, 2017 Executive Order.
- US Customs and Border Patrol (CBP) has advised airlines to allow passengers to board (airlines had been refusing to issue tickets to individuals, we understand on the instructions of CBP). Some airlines still have not updated their systems to reflect the new order. You should bring a copy of the order with you.
- We understand 100,000 travel VISAs were cancelled last weekend. It is not clear whether these cancelled VISAs are revived by this Order.
- The reversal of position arises because of a Temporary Restraining Order issued by a Federal Court Judge in Washington which enjoins and restrains the Federal Government and ALL of its officers, agents, servants, employees, attorneys and persons acting in participation with them from enforcing the following sections of the Executive Order:
- 3(c), which reads, in part:
- I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from [Syria, Iran, Libya, Somalia, Sudan and Yemen]… would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
- 5(a), which reads, in part;
- The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days… Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.
- 5(b), which allows USRAP to prioritize refugee claims by claimants from minority religions in the affected countries, “to the extent permitted by law”;
- 5(c), which suspends entry by Syrian refugees indefinitely;
- 5(e), which reads:
- Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.
- The US Federal Government has said it will appeal the Temporary Restraining Order. Therefore we do not know how long this will last.
- 3(c), which reads, in part:
February 1, 2017: Ask Canada’s government to take immediate action on the US travel ban
Last night Canada’s Parliament held an emergency debate on the issue of Canada’s response to the US travel ban. The debate concluded around midnight, but yielded few clear answers.
What we are hearing from Canada’s federal government so far is concerning. Immigration Minister Ahmed Hussen has indicated that Canada will not revise its refugee resettlement targets in light of the US ban. The Minister of Immigration has further stated that he will not, at this time, suspend the ‘Safe Third Country’ agreement between Canada and the US.
Meanwhile, pressure to do exactly that — suspend the ‘Safe Third Country’ agreement— is mounting. Civil society groups have been calling for this action since last week. The BCCLA joined that chorus. Yesterday, a coalition of more than 200 law professors from across the country also called on Canada’s government to take this action.
So, what is the Safe Third Country Agreement?
The Safe Third Country Agreement, requires refugee claimants to ask for protection in the first safe country they arrive in – so, with some exceptions, people traveling through the U.S. can’t come to Canada’s border and ask to seek asylum there.
This means that refugees who arrive on Canada’s doorstep via a land border will be turned back to the United States. In a time when the US has closed their doors to refugees, this agreement simply doesn’t make sense.
Knowing this situation, when Canada turns refugees away at our borders as part of this agreement we are choosing to send away people whose lives are in peril.
Canada’s government can easily rectify this situation. Suspending the agreement can be accomplished simply by notifying the US that we intend to suspend the agreement. We can do so for up to three months at a time without having to rescind the agreement entirely. Should the entry ban in the US persist or worsen, we can renew the suspension or choose to rescind at that time. The full text of the Safe Third Country agreement can be found here.
Canada’s immigration minister has been quoted as saying that “The responsible thing to do is to maintain contact, to continue to engage and make sure we monitor the situation closely to make sure we provide information to Canadians,”.
In this case, that response makes no sense. Our continued engagement with this agreement puts lives in danger. The responsible action here is to suspend this agreement.
Take Action Right Now
That’s why together with our friends at the Canadian Civil Liberties Association we are asking Canadians to contact their MP, the Prime Minister, and the Minister of Immigration seeking immediate action in response to the US Travel Ban.
The email itself outlines 8 specific actions. These are:
- Suspend the Canada-U.S. Safe Third Country Agreement, which prevents asylum-seekers travelling from the US from claiming refugee status in Canada, unless they qualify for the limited exception under the agreement.
- Put in place procedures to efficiently process applications from all asylum seekers from countries affected by the ban who are in the United States and wish to seek refuge in Canada.
- Increase the number of refugees accepted by Canada in 2017 to accommodate individuals from countries currently affected by the U.S. ban, and in particular raise the cap recently imposed on refugees from Syria and Iraq.
- Ensure Canadian airlines and other commercial enterprises do not collude with a foreign domestic order – and refuse boarding passes to immigrants, dual citizens, refugees and asylum seekers ̶ that discriminates on the basis of country of origin, ethnic origin, or religious belief.
- Ensure clear guidelines are provided by Canada and the Ministry of Foreign Affairs to all consular officials to assist any Canadians from the U.S. ban-listed countries who are overseas and find themselves stranded, detained, or otherwise prevented from returning to Canada.
- Review the impact of all information sharing agreements with the United States, including, but not limited to the Security Canada Information Sharing Act introduced by Bill C-51; the information sharing agreements pursuant to the Canada-U.S. Security Perimeter Agreement; and the particular impact of Canadian national security agencies including the Canadian Border Security Agency sharing information with U.S. agencies. Canada must ensure that innocent persons are not put at risk by information provided by Canada.
- Review the implementation of the U.S. International Traffic in Arms Regulations (ITARS), which has been used on several occasions by Canadian companies to unlawfully discriminate against individuals lawfully in Canada on the basis of their country of origin or contacts to a foreign country.
- Provide immediate assistance for any individuals who may be stranded at Canadian airports, bus and train stations as a result of the ban, including those who anticipate being denied entry on arrival to the United States and those who have been turned away by U.S. Customs and Border Protection preclearance.
If you use the email tool, you’ll be asked at the end if you want to self-select as someone who wants to volunteer in a variety of capacities on a ‘rapid response’ basis. We need you, and we need your skills. Let’s get organized! I hope you’ll take action now, and sign up for the rapid response group that makes sense for you.
Continue to check back here for the latest updates on Canada’s response to the US travel ban.
January 30, 2017: On January 27, 2016, United States President Trump signed an Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States”.
The order is directed at three groups of people. First, refugees from any country are barred from entering the U.S. for the next 120 days. Second, refugees from Syria are barred from entering the U.S. indefinitely. And, third, citizens from seven Muslim-majority countries are barred from entering the U.S. for at least the next 90 days. Those countries are Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
Since the order was issued on Friday, questions have arisen regarding its applicability to Canadian citizens and / or permanent residents. While the U.S government has apparently given assurances Canadians holding dual citizenship from one of the seven countries named in the order are not barred from travelling to the U.S., many questions remain about the manner in which the order is being applied at border crossings.
Border officials have significant discretion when carrying out their duties and entry to the U.S. is evaluated on a case-by-case basis. The bottom line is that Canadians may still encounter problems at the U.S. border.
Until there is further clarity regarding the way in which the order is being applied at U.S. border crossings, Canadians with dual citizenship from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen should consider avoiding travelling through a U.S. port of entry.
The BCCLA will update this with more information as it becomes available. Canadians encountering problems crossing the U.S. Border should call Canada’s emergency travel number at 613-996-8885.